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UNITED STATES v. BOWERS

December 9, 1983

UNITED STATES OF AMERICA,
v.
RICHARD M. BOWERS, Defendant.



The opinion of the court was delivered by: MCCURN

MEMORANDUM-DECISIOON AND ORDER

NEAL P. McCURN, D.J.

 Defendant, Mr. Richard Bowers, has been charged with a violation of Title 18, U.S.C. § 1382, which provides in pertinent part:

 . . . Whoever reenters or is found within any [military installation], after having been removed therefrom or ordered not to reenter by any officer or person in command or charge thereof --

 Shall be fined not more than $500 or imprisoned not more than six months, or both.

 On September 26, 1983, a non-jury trial was held, At the conclusion of the defendant's case, the defendant requested additional time in which to brief the constitutional free speech issues he was relying upon as his sole defense to the trespassing charge. The court granted the defendant's request and directed that the defendant submit his brief within 20 days and directed the government to submit its reply brief within 10 days thereafter. The court reserved its decision pending submission of the briefs. The court has now had an opportunity to review all of the papers submitted. This opinion constitutes the court's findings of fact and conclusions of law pursuant to Rule 52(a) of the Fed. R. Civ. P. For reasons set out below, the court finds the defendant guilty of violating 18 U.S.C. § 1382. Findings of Fact

 On or about June 3, 1983, the defendant, Mr. Richard Bowers, wrote a letter to Col. Eddie W. Harris, Commander, Griffiss Air Force Base ("Base") requesting permission to enter onto Griffiss Air Force Base and distribute a leaflet. Mr. Bowers had previously submitted a copy of the leaflet to the Air Force for review. After reviewing Mr. Bower's request, Col. Harris denied it by letter dated June 8, 1983. The defendant then wrote to Col. Kennedy at the Base again requesting permission to enter upon Griffiss Air Force Base and distribute leaflets. His request was again denied.

 The leaflet which Mr. Bowers sought to distribute was entitled "To Maximize Freedom Within Community We Must Eliminate Huge Nation-States" and was written by the defendant. It warned of the dangers of nuclear weapons and contained the following passage:

 Let me say a few words to those in military services. I urge each to ask to be discharged on the basis of opposition [sic] to nuclear weapons.

 There have been early discharges of military personnell [sic] who sought early discharge as unwilling to stay in a military force which might use nuclear weapons.

 Before taking such action each should consult with others. As an attorney-at-law, I am willing to help any person in the Army, Navy or Marines be [sic] released from our military. I have addresses of groups active in this field. . . .

 Please stop working. As soon as you can. Better stop at once, even if you cannot afford to.

 Despite the denial of his requests for permission to enter the Base, Mr. Bowers entered Griffiss Air Force Base on August 15, 1983 and again requested permission to distribute his leaflet. He was denied access to the Base for that purpose. The defendant then refused to leave the Base and continued to demand the right to distribute his leaflet on the Base. The defendant was then escorted to the Security Police Office where he was issued a "debarment letter." *fn1" He was then escorted off the Base.

 About two hours later the defendant reentered Griffiss Air Force Base and again requested that he be permitted to distribute his leaflet. At that time the defendant was charged with reentering a military installation after having been ordered not to reenter in violation of 18 U.S.C. § 1382. ...


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